# Surajpal Sharma v. Deputy General Manager (Western Zone) UPSRTC and others

- **Citation:** (2003) 1 ILRA 35
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-01
- **Case number:** Civil Misc. Writ Petition No. 17739 of 1991
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surajpal-sharma-v-deputy-general-manager-western-zone-upsrtc-and-others-40052
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226-
Alternative Remedy- where the disputed
question of facts, involve no specific
pleading about efficacious- alternative
remedy-
petitioner
a
conductor
-
undisputedly is within the meaning of
workman- court declined to interfere.

Held para 7 and 8

It is undisputed that the petitioner is a
workman as defined under Section 2 (z)
of the U.P. industrial Disputes Act and
proper forum for adjudication of dispute
is labour court under the provisions of
the aforesaid Act.

This Court will not exercise its powers
under Article 226 of the Constitution of
India and adjudicate upon a controversy
which requires findings of facts by
appraisal
of
orai
and
documentary
evidence. In these circumstances, it
would
be
proper
to
relegate
the
petitioner
to
the
alternative
and
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36 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
efficacious remedy available to him
before the labour court.

## Text

http://www.allahabadhighcourt.nic.in
1 All] Surajpal Sharma Vs. Deputy General Manager (Western Zone) UPSRTC and others
35
quo ante be restored. The finding of fact
recorded in the case is that the conditions
of S. 20 (4) of U.P. Act No. 13 of 1972
were not fulfilled, the arrears of rent from
1.8.1975 to 22.1.1976 (the date of the
compromise)
were
never
paid,
the
petitioner had committed default in
payment of rent and had committed
default in payment of rent and had made
himself liable for eviction. Hence in our
opinion the decree for eviction and arrears
of rent was rightly passed against the
petitioner it was a valid and executable
decree and the objections raised by the
petitioner in execution were rightly
dismissed. The impugned order is not
vitiated by any error law."

6. Be that as it may, in view of the
rival contentions, the decision of the
revisional court deserves to be set aside
on the ground that the Court below should
consider the relevant contentions and the
law referred to above and thereafter
record a finding, which has not been done
in the order impugned in the present writ
petition while allowing the revision and
dismissing the objection. There is yet
another reason that the revisional court
while exercising the revisional power for
setting aside the finding recorded by the
trial court should have remanded the
matter to the trial court, which has not
been done. For this reason alone, the
order impugned in the present petition
deserves to be set aside and is hereby set
aside.

7. In view of what has been stated
above, this writ petition deserves to be
allowed and is hereby allowed. The order
dated 13.11.1997, Annexure 4 to the writ
petition is set aside. The order passed by
the revisional court is modified that the
matter is remanded back to the trial court
with a direction to decide the matter in the
light of the observations made above.
However, the parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.11.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 17739 of 1991

Surajpal Sharma

...Petitioner
Versus
Deputy General Manager (Western Zone)
U.P.S.R.T.C. and another ...Respondents

Counsel for the Petitioner:
Sri S.C. Shukla

Counsel for the Respondent:
Sri D.K.S. Rathor

Constitution
of
India,
Article
226-
Alternative Remedy- where the disputed
question of facts, involve no specific
pleading about efficacious- alternative
remedy-
petitioner
a
conductor
-
undisputedly is within the meaning of
workman- court declined to interfere.

Held para 7 and 8

It is undisputed that the petitioner is a
workman as defined under Section 2 (z)
of the U.P. industrial Disputes Act and
proper forum for adjudication of dispute
is labour court under the provisions of
the aforesaid Act.

This Court will not exercise its powers
under Article 226 of the Constitution of
India and adjudicate upon a controversy
which requires findings of facts by
appraisal
of
orai
and
documentary
evidence. In these circumstances, it
would
be
proper
to
relegate
the
petitioner
to
the
alternative
and
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36 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
efficacious remedy available to him
before the labour court.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the learned counsel for the
parties.
2. By means of the present writ
petition, the petitioner has challenged the
orders
dated
16.3.1990
passed
by
respondent no. 2, Annexure V to the writ
petition
and
29.1.1991
passed
by
respondent no. 1, Annexure VI to the writ
petition.

3. The petitioner was appointed as
Conductor on 1.5.1965 and later on his
services were merged in U.P.S.R.T.C.

4. The disciplinary proceedings were
initiated against the petitioner and he was
placed under suspension vide order
16.12.1988. He was charge sheeted vide
order dated 21.12.1988 on the grounds
that he was found guilty of not depositing
Government money of Rs.1001/-in time
for remaining absent from duty with
effect from 3.12.1988 to 10.12.1988
without informing the Roadways Station
Incharge as well as misappropriated the
fair realized from eight passengers,
which not only resulted into financial loss
to the Corporation but tarnished the image
of the corporation also.

5. The petitioner submitted his
explanation on 10.5.1988 denying the
charges
leveled
against
him.
Departmental enquiry was conducted and
report was submitted by the Inquiry
Officer
against
the
petitioner.
The
petitioner
no.
2
vide
order
dated
16.3.1990 removed the petitioner from
service. The petitioner preferred an appeal
but the same was dismissed by respondent
no. 1 vide order dated 29.1.1991.

6. Counter and rejoinder affidavits
have been exchanged between the parties.
I have also gone through the records.

7. It is undisputed that the petitioner
is a workman as defined under Section 2
(z) of the U.P. Industrial Disputes Act and
proper forum for adjudication of dispute
is labour court under the provisions of the
aforesaid Act.

8. This court will not exercise its
power
under
Article
226
of
the
Constitution of India and adjudicate upon
a controversy which requires findings of
fact by appraisal of oral and documentary
evidence. In these circumstances, it would
be proper to relegate the petitioner to the
alternative
and
efficacious
remedy
available to him before the labour court.

In
Chandrama
Singh
Vs.
Managing Director , U.P. Cooperative
Union, Lucknow and others, 1991
UPLBEC 898, the Full Bench of this
Court in paraas 9 and 13 of the judgment
has held :

"9.
........Where
a
complete
machinery/remedy for obtaining relief is
provided in statute and such machinery
and remedy fully covers the grievance of
the petitioner then, unless extraordinary
exceptional circumstances exist or the
machinery- remedy does not cover the
grievance of the petitioner or the
machinery or remedy is demonstrated and
proved by the petitioner to be inadequate
or inefficacious, the petitioner has to be
relegated to the alternative remedy and
the Court should not entertain the writ
petition
under
Article
226
of
the
http://www.allahabadhighcourt.nic.in
1 All] Surajpal Sharma Vs. Deputy General Manager (Western Zone) UPSRTC and others
37
Constitution of India for redressal of
grievance of the petitioner."

13. The
decisions
of
the
Hon'ble
Supreme Court of India and this Court
noted above, lead to an irresistible
conclusion that the High Court must not
allow its extraordinary jurisdiction under
Article 226 of the Constitution of India to
be invoked if the petitioner has got an
alternative remedy and proved to be
inadequate or inefficacious or if it is not
established from the material on record
that
there
exist
exceptional
or
extraordinary circumstances to deviate
from the well settled normal rule of
relegating the petitioner to alternative
remedy and permit him to by pass the
alternative
remedy.
The
hurdle
of
alternative remedy cannot be allowed to
be skipped over lightly on a casual and
bald statement in the petition that there is
no other equally efficacious or adequate
alternative remedy than to invoke the
extraordinary jurisdiction of the High
Court
under
Article
226
of
the
Constitution of India. The petitioner must
furnish material facts and particulars to
sustain such a plea.

In the case of Scooters India and
others vs. Vijay E.V. Elder, 1998 SCC
L-S) 1611, the Hon'ble Supreme Court in
para 2 of the judgment has held:

"2. ....there was no occasion for the High
Court to entertain the writ petition directly
for adjudication of an industrial dispute
involving the adjudication of disputed
questions of facts for which remedy under
the industrial laws are available to the
workman."

The decisions of the Apex Court are
binding on all Courts under Article 141 of
the Constitution. The U.P. Industrial
Disputes Act, 1947 and Rules framed
thereunder are adequate for settlement of
any industrial dispute under the first,
second or third schedule. The Act and
Rules are complete Code for settlement
and adjudication of disputes and provide a
forum before the labour Court/Industrial
Tribunal for arriving at findings of fact by
taking into consideration the evidence,
oral and documentary adduced before it.

The Jurisdiction of the High Court
under Article 226 of the Constitution of
India cannot be permitted to be diluted on
the ground of pendency of the writ
petition for quite a long time and the High
Court may exercise its powers in such
cases in rare of rarest cases. The counsels
not only must advise their clients about
availability of alternative remedy, but
should plead in the writ petition as to why
that remedy is not efficacious and in rare
circumstances the jurisdiction of this
Court
under
Article
226
of
the
Constitution is being invoked without first
availing the alternative remedy.

In this view of the matter, the writ
petition is dismissed on the ground of
alternative remedy. No order as to costs.

It is, however, directed that if the
petitioner raises an industrial dispute
before
the
concerned
Regional
Conciliation
Officer/Deputy
Labour
Commissioner within a month from
today, the said authority will try to
amicably settle the dispute. In case no
settlement is arrived at the matter shall be
immediately referred by the competent
authority to the labour court or industrial
tribunal for adjudication, as the case may
be. The reference so made, shall be
decided by the court in the manner
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38 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
prescribed and time limits provided in
Rule 12 of the U.P. Industrial Disputes
Rules, 1957 for filing written statements,
rejoinders documents etc. If necessary,
the proceedings may be held on day to
day basis under Rule 12 (4) of the Rules
and the case may be decided preferably
within a period of six months from the
date of receipt of reference.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.12.2002

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Writ Petition No. 36233 of 1991

Gaon Sabha through its Pradhan and
others

 ...Petitioners
Versus
Dy.
Director
of
Consolidation
and
another

 ...Respondents

Counsel for the Petitioners:
Sri D.K. Singh
Sri Sabhapati Tiwari
Sri Manoj Kumar

Counsel for the Respondents:
Sri Amresh Singh
S.C.

U.P. Consolidation of Holdings Act 1961-
Section 11- Right to appeal- whether can
be exercised by such person even who
was not party before the Consolidation
officer held- "No"

Held- Para 8

A reading of the aforesaid statutory
provision reveals that an appeal can be
filed only by a party to the proceedings.
It is well settled in law that right of
appeal,
revision
or review are the
statutory rights. They are conferred by
the Statutes and unless conferred, they
can not be availed by any person and no
authority
can
entertain
an
appeal,
revision
or
review
unless
the
said
authority is authorized by the Statute to
entertain the same. The Deputy Director
of Consolidation was, thus, right in
holding that the aforesaid petitioners
were not the party to the proceedings
and they had no right to file an appeal.

(Delivered by Hon'ble R.H. Zaidi, J.)

1. Heard learned counsel for the
petitioners.

2. By means of this petition filed
under Article 226 of the Constitution of
India, petitioners pray for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
26.11.1991 passed by the Deputy Director
of Consolidation allowing the revision
filed by the respondents no. 2 under
Section 48 of the U.P. Consolidation of
Holdings Act, for short "the Act".

3. The relevant facts of the case
giving rise to the present petition, in brief,
are that the respondent no. 2, Jagdamba
filed an objection under Section 9-A of
the Act claiming Bhumidhari rights in the
land
comprising
in
Plot
No.
261
measuring 1 bigha 6 biswas. The
Consolidation
Officer
allowed
his
objection vide order dated 26.04.1977.
The petitioners thereafter challenged the
validity of the said order and filed an
appeal before the Settlement Officer
Consolidation. The Settlement Officer,
Consolidation allowed the appeal by his
judgment and order dated 23.08.1988.
The respondent no. 2 thereafter filed a
revision under Section 48 of the Act
before
the
Deputy
Director
of
Consolidation. The Deputy Director of
Consolidation has allowed the revision by